[J-70-2021] [MO: Baer, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

TIMOTHY OLIVER BARR II,

Appellant

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No. 28 MAP 2021

Appeal from the Order of the 

Superior Court at No. 2347 EDA 

2019 dated September 25, 2020 

Vacating the Order of the Lehigh 

County Court of Common Pleas, 

Criminal Division, at No. CP-39-CR0000279-2019 dated August 2, 

2019 and Remanding.

ARGUED: October 27, 2021

CONCURRING AND DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: December 29, 2021

Because “the smell of marijuana indisputably can still signal the possibility of 

criminal activity[,]” I join the majority’s central holding “that the odor of marijuana may be 

a factor, but not a stand-alone one, in evaluating the totality of the circumstances for 

purposes of determining whether police had probable cause to conduct a warrantless 

search.” Majority Opinion at 24. I write separately to elaborate on how, in my view, the 

smell of marijuana retains salience in the probable cause analysis after the enactment of 

the Medical Marijuana Act (“MMA”), 35 P.S. §§10231.101-10231.2110. I also write to 

explain my dissent from the majority’s decision to reinstate the trial court’s suppression 

order rather than remand to that court for further consideration.

Notwithstanding the legalization of medical marijuana for qualified patients, there 

are still several ways in which the smell of marijuana can combine with other factors to 

supply probable cause for a search. One is that an officer who smells marijuana may 
[J-70-2021] [MO: Baer, C.J.] - 2

also discover evidence of a violation of the MMA, which, in turn, may establish probable 

cause to believe a crime has been committed. As the majority correctly explains, “so long 

as a patient complies with the dictates of the MMA, that person can legally possess and 

consume various forms of medical marijuana, including the plant itself.” Majority Opinion 

at 24. But the inverse is also true: if an individual does not comply with the MMA, that 

person cannot legally possess or consume marijuana. In fact, failure to comply with the 

MMA’s terms renders an individual’s possession or use of marijuana unlawful and

subjects him to criminal liability under the Controlled Substance, Drug, Device, and 

Cosmetic Act (“CSA”), 35 P.S. §§780-101–780-144. See 35 P.S. §10231.304(a) (“Except 

as provided in [the MMA], the use of medical marijuana is unlawful and shall . . . be

deemed a violation of the [CSA].”). Given this, several of the MMA’s prohibitions warrant 

examination, because they highlight several ways in which the smell of marijuana can still 

signal the possibility of criminal activity. See generally Commonwealth v. Hicks, 208 A.3d 

916, 954 (Pa. 2019) (Dougherty, J., concurring) (“the legislature has the exclusive power 

to pronounce which acts are crimes and to define crimes, and it is the elements of those 

crimes that officers must consider when determining whether” the requisite cause exists) 

(internal quotations, brackets, and citation omitted).

Section 10231.304(b)(1) presents the most straightforward example. That section 

declares it “unlawful” to “[s]moke medical marijuana.” 35 P.S. §10231.304(b)(1). So, for 

example, if an officer smells marijuana emanating from an individual smoking a joint, the 

MMA would not be implicated; instead, the officer almost certainly would have probable 

cause to believe the individual has violated Section 780-113(a)(31) of the CSA, 35 P.S. 

§780-113(a)(31). Even in less clear-cut situations, evidence indicative of smoking (as 

opposed to vaping), including the presence of paraphernalia such as pipes, bowls, bongs, 
[J-70-2021] [MO: Baer, C.J.] - 3

rolling papers, etc., may in conjunction with the smell of marijuana give rise to probable 

cause.

The marijuana’s packaging can also be indicative of criminal activity. A condition 

for the “lawful use of medical marijuana” is that a patient’s marijuana “shall be kept in the 

original package in which it was dispensed.” 35 P.S. §10231.303(b)(6). Testimony from 

the suppression hearing reveals the likely rationale for this obligation: 

On the outside of the box, and this is for any packaging, on the outside of 

the package you have a label that is generated by the growing processor. 

It has a barcode on it and that’s how we keep track. That’s part of the seedto-sale system. That’s how we keep track of the product.

N.T. 7/17/2019 at 192-93; see also 35 P.S. §10231.701 (requiring growers, processors, 

and dispensaries to “implement an electronic inventory tracking system which shall be 

directly accessible to the [Department of Health] through its electronic database that 

electronically tracks all medical marijuana on a daily basis”). Regardless of the wisdom 

of imposing this original packaging requirement, the statute is clear: for marijuana use to 

be lawful, the patient “shall” keep any unused marijuana “in the original package in which 

it was dispensed.” 35 P.S. §10231.303(b)(6).1 Thus, where an officer who smells 

marijuana also observes its packaging (or lack thereof) and there is no barcode or other 

 

1 The trial court plainly was of a different mind on this point. See, e.g., N.T. 7/17/2019 at 

101 (“But is this what we’re going to do now? . . . Every small amount case where a 

person has a [medical marijuana] card we’re going to say, but it’s not properly, you know, 

in a container?”); id. at 178 (asking defense expert if he believed “that in contemplating 

the legalization of marijuana that perhaps not enough thought was put into what happens 

if it’s not in the right package?”); id. at 199-200 (expressing belief that “there is a huge 

disconnect between the medical/legal professions” because the medical community “did 

not contemplate that Pennsylvania would be arresting people and charging them for not 

having marijuana . . . in the proper container”). Respectfully, whether a particular expert 

or the medical community at large deem the original packaging requirement a wise 

legislative choice is irrelevant. Since the provision is unambiguous, “the letter of it is not 

to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b).
[J-70-2021] [MO: Baer, C.J.] - 4

identifying information that typically appears on the original packaging from a dispensary, 

that could be enough to establish probable cause.2

Beyond the MMA, there is also the Motor Vehicle Code’s prohibition on driving

under the influence of controlled substances, which includes marijuana. See 75 Pa.C.S. 

§3802(d)(1)(i) and (iii) (“[a]n individual may not drive, operate or be in actual physical 

control of the movement of a vehicle” where “[t]here is in the individual’s blood any 

amount of a [ ] Schedule I controlled substance . . . [or] metabolite” of such substance)

(emphasis added). This statute clearly indicates that, “despite the passage of the MMA, 

it still is illegal in Pennsylvania to smoke or vape marijuana while driving.” Commonwealth 

v. Grooms, 247 A.3d 31, 40 n.11 (Pa. Super. 2021) (citation omitted). As such, it is not 

hard to envision a situation where the smell of marijuana could supply an officer with 

probable cause to believe a driver, rather than a passenger, has violated the law. See, 

e.g., Pennsylvania District Attorneys Association’s Brief at 18 (“[I]f an officer smells an 

odor of burnt marijuana when approaching a vehicle solely occupied by the driver, that 

likely means that the driver is smoking marijuana while driving or smoked marijuana 

shortly before driving.”).3

 

2 Another prerequisite for the lawful use of medical marijuana is that “[a] patient or 

caregiver shall possess an identification card whenever the patient or caregiver is in 

possession of medical marijuana.” 35 P.S. §10231.303(b)(7). Here, appellant presented 

a valid medical marijuana card to the officers. Parenthetically, though, I observe Section 

10231.1103 of the MMA permits the Department of Health to “verify to law enforcement 

personnel in an appropriate case whether . . . an identification card is valid[.]” 35 P.S. 

§10231.1103.

3 More broadly, it remains an open question “whether an odor of marijuana alone 

emanating from a moving vehicle is sufficient to establish ‘reasonable suspicion’ to allow

further investigation into whether a crime has or is being committed, such that after further 

investigation, the totality of facts ripens into probable cause to search.” Grooms, 247 

A.3d at 40 n.11 (emphasis omitted).
[J-70-2021] [MO: Baer, C.J.] - 5

Turning now to the disposition of this case, preliminarily, I agree with Justice 

Mundy the applicable “test is not whether the troopers’ subjective reason for searching 

the car surmounted constitutional scrutiny. Rather, an assessment of probable cause is 

an objective one measured by examining the totality of the circumstances.” Concurring 

and Dissenting Opinion at 1 (citations omitted). I further agree with the Superior Court’s 

conclusion that “other potentially relevant factors were not considered by the trial court, 

and the court’s credibility assessments of the testimony ostensibly establishing those 

factors are not in the record.” Commonwealth v. Barr, 240 A.3d 1263, 1289 (Pa. Super. 

2020).

For example, as Justice Mundy notes, it appears the trial court “[o]verlooked . . .

the fact that officers’ suspicions of criminal activity increased after [a]ppellant became 

hostile, refused to let anyone get out of the car upon request by the officers, and required 

additional police support to respond to the scene.” Concurring and Dissenting Opinion at 

2.4 Although the majority baldly asserts “it is more than reasonable to conclude that the 

[trial] court implicitly discredited Trooper Prentice’s contention that” appellant’s behavior 

was “indicative of criminal activity[,]” Majority Opinion at 29, the record does not support 

the majority’s position. In fact, the trial court carefully explained that the only portion of 

 

4 Specifically, Trooper Prentice testified that appellant

informed me to “do my job and to just issue me a ticket.” From the SHIELD 

training that I had received I know that when a passenger is taking over a 

traffic stop and becoming argumentative that there’s more than just a traffic 

violation going on. The other thing that also took place was, Ms. Barr asked 

me to just write her a ticket and asked me to just move on. Again, another 

indicator of a criminal incident. And no one of those specifics just 

determines that it’s a criminal matter. It’s the totality of the circumstances 

where they start adding up to lead you to believe that there is some sort of 

criminal element that’s going on.

N.T. 7/17/2019 at 31-32; see id. at 29 (explaining appellant was “being argumentative” 

and “refusing to let [his wife] exit the vehicle”).
[J-70-2021] [MO: Baer, C.J.] - 6

the testimony it deemed incredible was Trooper Prentice’s assertion that he smelled both 

burnt and dry marijuana emanating from the car. See N.T. 7/17/2019 at 61 (“As the 

factfinder, I’m going to state for the record, as is my responsibility, I am not calling this

witness a liar. I’m saying perhaps he is not educated enough on the smells because one 

smell is going to trump the other.”); Trial Court Opinion, 8/2/2019 at 4 n.10 (“Trooper 

Prentice testified that he could smell the odor of raw and burnt marijuana through the 

open window when he was at the rear of the vehicle. This Court takes issue with this 

testimony of Trooper Prentice and finds it not to be credible.”) (emphasis added). I find 

no basis in the record for concluding the trial court discredited any testimony other than 

this limited point.

Aside from appellant’s behavior, there are other factors that could be relevant to 

the probable cause analysis that were ignored by the trial court. For one, Trooper 

Prentice testified he observed the car after midnight pull out of a particular apartment 

complex where “a number of stolen gun and [drug] cases originate from[.]” N.T. 7/17/2019 

at 14. As well, Trooper Prentice pointedly explained that, “[b]ased off of the odor of burnt 

marijuana [he] didn’t know if [the driver] was possibly DUI.” Id. at 69. And there was the

presence of an individual in the backseat of the car who did not present a medical 

marijuana card yet appeared “dazed and out of it.” Id. at 29.5

Because these potentially relevant factors were not considered by the trial court in 

their totality, I agree with the Superior Court that “the most prudent course of action is to 

remand for reconsideration by the trial court under the appropriate standard.” Barr, 240 

A.3d at 1289. I therefore respectfully dissent from the majority’s decision to reverse the 

 

5 The officers also discovered loose marijuana on the floor of the car and in a plain Ziploc 

bag bearing “no reference numbers, no dispensary distributor numbers, nothing.” N.T. 

7/17/2019 at 35; see id. at 81 (explaining the bag had “no markings on it in any way, 

shape, or form”). However, this evidence appears to have been discovered during the 

initial search of the interior of the car. See id. at 33-34.
[J-70-2021] [MO: Baer, C.J.] - 7

Superior Court’s remand order and reinstate the trial court’s order granting appellant’s 

motion to suppress.

Justice Mundy joins this concurring and dissenting opinion.